Repeated Failure of Mass Action Plaintiffs to Respond to Discovery Questionnaires from Defense Attorneys Warranted Dismissal of those Plaintiffs with Prejudice District of Columbia Federal Court Holds

Plaintiffs, “citizens and domiciliaries of Ecuador,” filed a mass action complaint against various defendants “alleging physical harm and property damage stemming from the defendants’ contract with the United States government to spray pesticides in order to eradicate Colombian cocaine and heroin farms.” Arias v. DynCorp Aerospace Operations, LLC, ___ F.Supp.2d ___ (D.D.C. January 12, 2010) [Slip Opn., at 1.] Defense attorneys served questionnaires on the class members, seeking specific information related to the claims; some individuals failed to respond at all. Other plaintiffs, however, provided incomplete responses and repeatedly failed to do so. The parties jointly moved to dismiss from the litigation 425 plaintiffs who fell within two categories: “(1) plaintiffs who have provided sufficient information about the alleged date(s) of their exposure to the defendants’ spray but who did not disclose sufficient information about their location at the time of their exposure; and (2) plaintiffs who did not provide sufficient information about their alleged damages.” Id., at 1-2. Plaintiffs’ counsel argued that the dismissal should be without prejudice; defense attorneys urged the district court to dismiss the plaintiffs’ claims with prejudice. Id., at 1, 2. The district court granted the motion and dismissed the plaintiffs with prejudice.

Defense attorneys argued that the plaintiffs falling within the two groups at issue should be dismissed with prejudice because they “have been ‘given several chances to provide the information ordered by the Court but [have] failed to do so.’” Arias, at 2. Plaintiffs’ counsel disagreed, arguing that the plaintiffs “provided sufficient information regarding either exposure location or damages.” Id., at 2-3. After summarizing the rules governing dismissals under Federal Rules of Civil Procedure 37 and 41, see id., at 3-4, the district court summarized the history of the discovery requests and the various court orders violated by plaintiffs, see id., at 4-5. The federal court explained at page 5, “It has been over two years since the plaintiffs were first directed to complete the defendants’ questionnaires. Multiple orders have directed the plaintiffs to respond in full to the questionnaires, and the plaintiffs received three extensions of time in which to do so.” Plaintiffs’ counsel argued that the information provided, while incomplete, was adequate to allow defendants to “draw their own conclusions” as to the plaintiffs’ claims. Id., at 6. The district court disagreed: “The plaintiffs essentially are asking the defendants to draw conclusions based on incomplete information. If a plaintiff meant “my farm” rather than “the farm,” that plaintiff simply should have stated so in his questionnaire. Despite the plaintiffs’ ample opportunity to fill in the information gaps, they now turn to the defendants to do this work for them. This, however, is not the defendants’ duty.” Id.

The district court also concluded that plaintiffs’ incomplete responses prejudiced defendants’ ability to defend the action. See Arias, at 6. Moreover, “unlike plaintiffs who have not participated in the litigation at all, these plaintiffs have repeatedly resisted prodding to plainly state data to which they have access.” Id., at 7. Accordingly, the district court dismissed with prejudice from the class action all plaintiffs falling within the scope of the two dismissal categories because “[they] have been given repeated opportunities to provide the requested information about the location of their exposure and their alleged damages, but have failed to do so” and because “this failure prejudices the defendants and violates multiple explicit court orders, and no lesser sanction is appropriate,” id., at 8.

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About the Author

Michael J. Hassen

Michael J. Hassen's litigation practice spans almost 30 years and emphasizes general business and commercial litigation, including class action defense and unfair business practice representative actions (section 17200).

He represents lenders in all facets of lender litigation, ranging from class actions and unfair business practices based on alleged "predatory" lending and RESPA violations or alleged violations of the Fair Debt Collection Practices Act, to claims alleging elder abuse or challenging the validity or priority of liens.

Michael also has significant experience in business torts such as misappropriation of trade secrets and raiding of corporate employees, ADA claims, and all phases of commercial and real estate finance, construction finance and construction defect claims.

He is experienced in appellate matters, having had primary responsibility for preparing more than 100 appellate briefs.